Advisory Opinion No. 2002-11

Re: Donald Tufts

QUESTION PRESENTED

The East Greenwich Town Solicitor requests an advisory opinion on behalf of the petitioner, an East Greenwich Town Councilor, a municipal elected position, as to whether he may participate and vote on a proposed tax freeze ordinance, given that he would benefit from the proposal as a property owner aged 65 or over.

RESPONSE

It is the opinion of the Rhode Island Ethics Commission that the petitioner, an East Greenwich Town Councilor, a municipal elected position, may participate and vote on a proposed tax freeze ordinance that would benefit property owners aged 65 and over, notwithstanding the fact that he is a property owner aged 65 or over. In accordance with Section 7(b) of the Code of Ethics, the petitioner would be affected by the proposal to no greater or lesser extent than the significant and definable class of all persons aged 65 or over who own property within the Town.

Under the Code of Ethics, the petitioner may not participate or vote in any matters in which he has an interest, financial or otherwise, which is in substantial conflict with the proper discharge of his duties. See R.I. Gen. Laws § 36-14-5(a). A substantial conflict of interest occurs if he has reason to believe or expect that he, a business associate, or a business by which he is employed or represents will derive a direct monetary gain by reason of his official activity. See R.I. Gen. Laws § 36-14-7(a). However, he will not have an interest in substantial conflict with his public duties if any benefit accrues to him, his business associate, or any business by which he is employed or represents “as a member of a business, profession, occupation or group, or of any significant and definable class of persons within the business, profession, occupation or group, to no greater extent than any other similarly situated member of the business, profession, occupation or group, or the significant and definable class of persons within the business, profession, occupation or group.” See R.I. Gen. Laws § 36-14-7(b).

The East Greenwich Town Solicitor advises that the East Greenwich Town Council is considering a proposed tax freeze ordinance that would benefit property owners aged 65 and over. He states that the petitioner is a Town Councilor who would benefit from the proposal, which would affect 660 property owners in the Town. According to the Tax Assessor’s Office, there are 4,000 properties in the Town of East Greenwich.

The Commission previously has applied the 7(b) class exception where the matter at issue concerned large groups, such as all members of a community, all hunters, all state pension recipients or all teachers within a school system. A tax exemption that would affect all property owners aged 65 and over, here numbering 660 persons, clearly falls within that exception. Compare A.O. 99-82 (declining to apply the class exception to a proposed elderly and disabled tax freeze ordinance where only 192 properties would be affected).

Therefore, the Commission concludes that the petitioner may participate and/or vote on the proposed tax freeze ordinance since he would be affected to no greater or lesser extent than all the other members of this significant and definable class. However, the petitioner must file a Section 6 recusal notice, indicating the reasons why, despite his interest, he is able to vote objectively, fairly, and in the public interest on the matter at issue. Notices of recusal should be filed both with the Ethics Commission and the Town of East Greenwich in accordance with R.I. Gen Law § 36-14-6.

Code Citations:

36-14-5(a)
36-14-7(a)
36-14-6

Related Advisory Opinions:

98-101
98-51
98-41
98-40
97-79
96-66
95-101
95-35
94-61
93-65
91-97

Keywords:

Class exception
Property interest